C2003/2535, Transcript of Proceedings [2003] AIRCTrans 2980 (15 July 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT LAWLER

C2003/2535

CPSU, THE COMMUNITY AND PUBLIC
SECTOR UNION - PSU GROUP, VICTORIAN
REGION

and

TELSTRA CORPORATION LIMITED

Notification pursuant to section 99 of the Act
of a dispute re provision of public holiday in
lieu for employees

SYDNEY

9.04 AM, TUESDAY, 1 JULY 2003

Continued from 24.6.03

Hearing continuing

PN356

THE VICE PRESIDENT: The appearances are as before - Mr Veenandaal and Mr Wood?

PN357

MR WOOD: Yes, your Honour.

PN358

MR VEENANDAAL: Yes, your Honour.

PN359

THE VICE PRESIDENT: What is occurring, gentlemen?

PN360

MR VEENANDAAL: Your Honour, all I can indicate is that since the last hearing there have been a number of exchanges of correspondence between the parties. Probably the most significant involved a letter from Mr Stapleton and myself which I think I received on the Thursday afternoon. It was dated the 20th, I think that was a typographical error. Where Mr Stapleton was offering a meeting to be held at 10.00am yesterday in Melbourne. And a letter from me to Mr Stapleton sent on Friday, 27 June, which confirmed the position and the offer for settlement that we put on the last occasion and also advised Mr Stapleton due to commitments in proceedings before Commissioner Smith all day yesterday I was unable to attend the suggested meeting yesterday.

PN361

Then there was a further letter from Mr Stapleton to me - which I received late Friday the 27th - which indicated that the company was going to continue to have discussions with the other unions in my absence. Then a further letter which I received, I think, yesterday from Mr Wood representing the company, the essence of which was that it has not been possible for the parties to meet yesterday. It attached an amended, suggested order in terms of the settlement they were offering in the matter and that was in similar terms to the agreed position that we achieved a week and a half or so ago save for a few amendments.

PN362

The substance of the submission is that there has been no settlement. There has been no agreement to the offer that was made by the CPSU on the last occasion and on that basis there is currently no settlement on the matter.

PN363

THE VICE PRESIDENT: Mr Wood, do you take the view that there has been conciliation in this matter thus far?

PN364

MR WOOD: I take the view, your Honour, that there is I think scope for further conciliation. If you are asking the question, has your Honour conciliated the matter - possibly.

PN365

THE VICE PRESIDENT: I think there have been exchanges which have been in the nature of conciliation. I am just conscious that there is an obligation to conciliate before there is any arbitration of the matter. Are you in a position - I appreciate that this is not the most desirable way of doing it, by video conference - but are you in a position for that to occur now? Please feel free to say, no. I won't be offended if you do.

PN366

MR WOOD: I think now is not the most opportune time but I was going to suggest that indeed it is appropriate that the parties should confer further - either with or without the assistance of the commission - in the next day or so. It certainly is a matter that should be resolved, in my view.

PN367

THE VICE PRESIDENT: Can I just ascertain what separates the parties at the moment? Am I correct in saying that what separates the parties at the moment is the extent to which there ought to be any "retrospective" effect in an agreed position. That is the extent to which Telstra should be back-paying people in respect to public holidays where the relevant employees didn't receive either a day in lieu or money in lieu since the end of December 2002. Since about 27 December 2002.

PN368

MR WOOD: Yes, your Honour, I think that is a substantive issue. There is also the question of the proposed joint statement which Telstra proposes. Those two issues but fundamentally the retrospectivity question is what is in issue in that.

PN369

THE VICE PRESIDENT: Have you submitted a draft joint statement to Mr Veenandaal yet?

PN370

MR WOOD: No, we haven't done that. My instructions from Telstra are that they are simply not prepared to accede to putting out a draft joint statement at all should the matter be resolved or at least to have any constraints imposed on what the parties might say. So the CPSU, my instructions, are free to say what they choose and Telstra is free to say what it chooses.

PN371

THE VICE PRESIDENT: Yes. I take it that you don't contest the CPSU position that until December 2002 the relevant business units in Telstra provided time in lieu, days in lieu, or money in lieu in accordance with the test case standard?

PN372

MR WOOD: Well I think we certainly concede that in one area which is the area affected by the CPSU and which has been the subject of the discussions between the parties that was the case. Yes, I can certainly say that is the case, your Honour.

PN373

THE VICE PRESIDENT: Do you contest the factual position asserted by Mr Veenandaal on the last occasion that it was as a consequence of a direction from human resources, or some other management area of Telstra, that that particular area changed its practice?

PN374

MR WOOD: Yes we do accept that proposition. I think that was on the basis, your Honour, that someone in their wisdom reviewed the wrong clauses.

PN375

THE VICE PRESIDENT: And decided that it didn't apply in the way that it had been applied, yes.

PN376

MR WOOD: That is right. And whether or not, your Honour, that is applied elsewhere throughout Telstra I can't say at this stage.

PN377

THE VICE PRESIDENT: How many public holidays are affected by this period from 27 December 2002 until now? Do you know that Mr Veenandaal - about three?

PN378

MR VEENANDAAL: I would suggest all or most of the public holidays that occurred since that time and we are looking probably at about something like seven public holidays - six or seven public holidays. But I have to say, your Honour, I haven't actually sat down and looked at the public holidays. Our offer was related to all public holidays that have occurred, up to an including Boxing Day 2002.

PN379

THE VICE PRESIDENT: You mean "from". Not up to and including "from" Boxing Day 2002.

PN380

MR VEENANDAAL: But including Boxing Day 2002.

PN381

THE VICE PRESIDENT: Mr Veenandaal, do you accept that the position you are presently sitting on - if I can put it that way - in the negotiations is a position that represents a complete victory and involves no concession whatever on the union's part?

PN382

MR VEENANDAAL: Absolutely not, your Honour. In fact the offer that we make could not be described as a complete victory. I think a complete victory would be retrospectivity.

PN383

THE VICE PRESIDENT: Let me just test that proposition. As I understand it at least so far as the workers who are covered by this particular application are concerned, they have been paid in accordance with the test case standard, or received benefits in accordance with the test case standard for all public holidays up to - but not including - Boxing Day 2002. Correct?

PN384

MR VEENANDAAL: I don't know whether I understand what you are saying, your Honour, but I think it is exactly the opposite. You are just talking about the enterprise sales area?

PN385

THE VICE PRESIDENT: Mr Veenandaal, I had understood you to assert on the last occasion that the relevant business area of Telstra had in fact, as a matter of practice, been observing the test case standard. And it was as a consequence of some direction from human resources or some other management area in Telstra that this more narrow view of clause 12.5 was applied. And that as a consequence it is only since the public holiday on Boxing Day in 2002 that the strict view of clause 12.5 has been applied giving rise to the circumstance that full-time roster workers may not have accrued a day in lieu, or money in lieu in respect of public holidays falling on a day when they were not working in their cycle of roster.

PN386

MR VEENANDAAL: In essence that is what we said. But from inquiries that I have made we understand that the Telstra position - at least for several years up to Boxing Day 2002 - was that they were applying the test case standard, if you want to put it in those terms. We don't know whether they were applying that standard, for instance, from 1995 in terms of our application. But the substance of what you say is the position that we put last time. I was confused because I thought you were talking about the Telstra-wide position.

PN387

THE VICE PRESIDENT: No, I am just talking about the people the area that provoked this particular application.

PN388

MR VEENANDAAL: That is 7.7, because as you are aware our application is a Telstra wide application and we advised the company in clear terms on 21 May, that is before the application was even lodged, that the section 99 notification of an alleged industrial dispute actually applied to the Telstra wide position for non standard working arrangements, public holidays, day in lieu, and as a result - - -

PN389

THE VICE PRESIDENT: But you have no information, as I understand it, that there's been any failure to comply in substance with the test case standard in any period prior to the Boxing Day 2002 public holiday.

PN390

MR VEENANDAAL: The information that I have is that it's likely that Telstra applied the clause in accordance with the way we say it should apply for approximately three years at least prior to the Boxing Day date. What we are saying is that to try and settle the matter we have been prepared to not press claims in respect to the enterprise sales area or any other area in Telstra and simply offer what we see as being a pretty reasonable resolution in the form that we offered on the last occasion and confirmed by way of written correspondence on the 27th.

PN391

THE VICE PRESIDENT: Mr Veenandaal, I want to tie you down on this and I'll keep on asking you questions that are precise and directed in order to try and get to the point that I'm seeking to understand. For the period prior to the Boxing Day holiday in 2002, you have no information that Telstra has done anything other than apply the test case standard.

PN392

MR VEENANDAAL: Well, that's not correct, your Honour. In fact I have information and I have to talk other than the enterprise sales area. What you say is correct in part in respect of this application and you are correct in the sense of the offer that the CPSU has made for settlement of this matter, but I do have information.

PN393

THE VICE PRESIDENT: No, Mr Veenandaal, I'm not interested in the offer - - -

PN394

MR VEENANDAAL: Your Honour, I'm trying to answer your question here, your Honour, am I able to do that? I have information - - -

PN395

THE VICE PRESIDENT: Mr Veenandaal, would you listen to me for a moment please? I'm the one that gets to make the decision as to whether or not the answer that you are giving is a responsive answer. Do you understand that?

PN396

MR VEENANDAAL: I do, your Honour.

PN397

THE VICE PRESIDENT: Thank you very much. Would you please focus on this proposition and to the extent that you disagree with it, identify by reference to the proposition how you disagree with it. The proposition is that for the period prior to Boxing Day 2002, you have no information that Telstra has done other than comply with the test case standards. Is that a correct statement or is it not a correct statement?

PN398

MR VEENANDAAL: Your statement relates to the enterprise sales area, your Honour?

PN399

THE VICE PRESIDENT: Do you have any information in respect of any area other than the enterprise sales area that Telstra has done other than comply with the test case standard in the period prior to Boxing Day 2002?

PN400

MR VEENANDAAL: Yes, I do.

PN401

THE VICE PRESIDENT: Which areas?

PN402

MR VEENANDAAL: There's an area over in Perth and I can indicate to the Commission that I'm in the process in accordance with the directions that have been issued by the Commission of seeking to obtain a statement from one or two employees in a call centre in Perth who suffered the same problem as those in the enterprise sales area and I'm also making inquiries about obtaining statements from other areas to the extent that we consider it necessary to demonstrate from an evidentiary point of view, if it comes to that as part of this application, that the issue is broader, a broader issue than the enterprise sales area.

PN403

It is my understanding also, your Honour, that Telstra at the first hearing was very clear in that they said that the clause didn't apply in the way we say it should apply and they also said, and this is Mr Trindaide I'm referring to here, that the reality is that if you work a big shift, you don't get the public holiday day in lieu.

PN404

THE VICE PRESIDENT: We all understand that that's the position that's certainly been obtained since Boxing Day 2002. My questions in the last five or ten minutes have been focussed on what the position was as a matter of fact prior to Boxing Day 2002 and the reason for that focus is because it bears upon the commerciality, if I can put it that way, to import a term that's used in other areas of the law, of a settlement.

PN405

If it be the case that the narrow or the strict approach to 12.5, if I can use that phrase to refer to the approach that was advanced by Mr Trindaide, has only been operative since Boxing Day 2002 and if it be the case that it's only been operative in the business enterprise area then the offer that the union is putting would in fact represent a complete victory and represent no compromise.

PN406

To the extent that this strict approach to clause 12.5 has been applied in other areas of Telstra since Boxing Day 2002 or in any area of Telstra prior to Boxing Day 2002 then the position advanced by the union does represent compromise. The fact of the matter, which we are unsure of, bears upon the reasonableness of adopting or not adopting what is proposed by the union as a settlement position, it seems to me.

PN407

Mr Wood, do you have any information at all about the extent to which the strict approach under clause 12.5 has been applied in the period prior to Boxing Day 2002?

PN408

MR WOOD: No, I don't, although I am informed that Telstra can't unfortunately push a button and find that material out, so conceivably it would be possible to make inquiries on that question, but that hasn't been conducted and I can't provide the answer and the people instructing me presently are unable to provide me with an answer.

PN409

THE VICE PRESIDENT: Mr Wood, you presently have an offer before you from the union which, putting aside the questions of joint statements, is an offer that says go back in the enterprise sales area only and make payments in lieu in respect to public holidays where they were not worked by people who are on permanent cyclical rosters. As I understand it you have rejected that offer at the moment, is that correct?

PN410

MR WOOD: Yes, that is rejected.

PN411

THE VICE PRESIDENT: Do you have any counter offer to put?

PN412

MR WOOD: No, I'm not instructed to put any counter offer, your Honour. The position that Telstra has adopted is that the narrow interpretation of clause 12.5 has been correct in its application and whilst Telstra might concede issues moving forward, this isn't a case that lends itself to retrospectivity and that's a fairly, if I can say, a fairly firm position that's been provided to me by way of instructions.

PN413

THE VICE PRESIDENT: Well, let me put this proposition to you: do you accept that if the parties had turned their mind to the appropriateness or otherwise of embodying the test case standard in this award at the time that Commission Lewin simplified it in 2001, that a clause reflecting the test case standard would have been inserted into the award?

PN414

MR WOOD: It's speculative, your Honour, I'm assuming we're off the record while we say all this.

PN415

THE VICE PRESIDENT: Well actually I don't think we are off the record at the moment. If you'd like to go off the record, I'm more than happy for that to occur. Do you have any objection to that course, Mr Veenandall?

PN416

MR VEENANDAAL: No, your Honour.

PN417

THE VICE PRESIDENT: Fine, well, we'll go off the record now and into conference.

OFF THE RECORD [9.25am]

RESUMES [9.47am]

PN418

THE VICE PRESIDENT: The parties have conferred off transcript for a period, it has been determined that it would be fruitful for a further discussion to take place between the parties and whether you were trying to achieve a settlement in that regard I've suggested tha the union should consider offering confidentiality save the necessary disclosure to affected members as a basis for Telstra agreeing to back pay for the period of Boxing Day 2002 in respect of the affected member in the enterprise area.

PN419

It seems to me that that would be a way of resolving the matter which would - which ought be capable of being adapted to meet the legitimate interests of the parties. By consent I vary the directions made on 24 June 2003 to extend the date in items 1, 2, 3 and 4 by one week. I vacate 14 July 2003 as the hearing date for the application and instead list the matter for hearing on Thursday 24 July 2003 at 10 am. That is the first available date that I have after the 14th Mr Veenandaal.

PN420

MR VEENANDAAL: Yes, thank you, your Honour.

PN421

THE VICE PRESIDENT: Is there anything further the parties wish to - do the parties wish to have a video conference report back?

PN422

MR VEENANDAAL: We'll have to get back the Commission.

PN423

THE VICE PRESIDENT: Unless I hear from you that the matter is settled, I will assume it is proceeding. If the matter settles then the parties can notify my associate that agreement has been reached and it can be dealt with in chambers for the purposes of vacating directions and organising for the orders to be made. I suppose the making of any consent orders ought to be done by video conference but the parties need not attend if there is an agreed position that can be handed up by one or other of the parties or indeed if it can be sent by facsimile I can simply sit and note the terms of the agreement and make any orders that are by consent without the parties needing to attend if that is of any assistance in the event that the matter settles.

PN424

MR WOOD: Is your associate going to reissue if you like the vendor directions?

PN425

THE VICE PRESIDENT: Yes. That will happen later today. Anything further. Yes, the matter is adjourned for hearing on Thursday 24 July 2003 at 10 am in Melbourne.

ADJOURNED UNTIL THURSDAY, 24 JULY 2003 [9.52am]